Petition for Writ of Certiorari — Cassis Management Corp. v. National Labor Relations Board

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\ Supreme Court, U.S.

‘ FIL&D

ma 98 609 aCT9 1998

GFHGE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1998

CASSIS MANAGEMENT CORPORATION,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT M. ZISKIN

Attorney for Petitioner

6268 Jericho Turnpike

Suite 12A

Commack, New York 11725

(516) 462-1417

148227 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

1. Did the National Labor Relations Board (herein the

“NLRB”) err when it found Donald Hoy to be an employee

rather than a supervisor and failed to interpret and apply Section

2(11) of the National Labor Relations Act in the disjunctive?

2. Did the United States Court of Appeals for the Second

Circuit err in failing to overturn the decision of the NLRB when

it found the issue of Hoy’s supervisory status “presented a close

question” and further found that ‘some factors’ militated in

favor of finding him a supervisor .. .” and still further found

“there was evidence to support an inference in either direction”?

PARTIES TO THE PROCEEDING

The parties to the proceeding are the Petitioner Cassis

Management Corp. and the Respondent NLRB. Local 32E,

Service Employees International Union AFL-CIO (herein

“Local 32E”) did not intervene in the proceedings before the

United States Court of Appeals for the Second Circuit (herein

the “Court of Appeals”).

The Petitioner is wholly owned by the Cassis Family

Limited Partnership, a New York limited partnership made up

of only members of the Cassis family. The petitioner has no

nonwholly owned subsidiaries.

iii

TABLE OF CONTENTS

Page

I I i ee Ft i

PORES ees pode rey. ii

SRR apa eg ae a reper iii

ree ae iv

I i a i a l

Statement of Jurisdiction ........................ l

Statutory Provision Involved ..................... l

eV ceeeeee. 2

Facts Concerning Donald Hoy’s Employment Status . 2

Reasons for Granting the Writ .................... +

I. The Petition Should Be Granted Because There

Was Substantial Evidence To Find Hoy Was A

I on, bo cena bebe s cous 4

Il. The Petition Should Be Granted Because The

NLRB Has Manipulated And Failed To

Consistently Interpret Section 2(11) In The

NS Ss CS whi kara 'siars « gos bes 6

SAGE SOLE ENR 1S ee ing SEER el 9

TABLE OF CITED AUTHORITIES

Cases:

Amalgamated Local Union 355 v. NLRB, 482 F.2d 996

COP GI, BPEE a aos cnn shoe eden sed ueeineaies

Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347

a Re SR Rates Sr SOE Ey:

N.L.R.B. v. Baby Watson Cheesecake, Inc., Lexis 3027,

1992 WL58825, 148 LLRM 2898 (2nd Cir. 1994) .

NLRB v. Meenan Oil Co., 139 F.3d 311 ...........

NLRB v. Metropolitan Life Insurance, 405 F. 2d 1169

CSG BE 60h snd eedeuasecesageeiers ee

N.L.R.B. v. Monroe Tube Co., 545 F.2d 1320 (2nd Cir.

PIPE ee ec chen chu sds cede sd vie cage ee

SEE ss 553 vb dene heaven eee

Spentonbush/Redstar Company v. NLRB, 106 F. 3d 484

CT BGT 8 oo es eis wn a hee ro eo aa

Universal Camera Corp., 340 U.S. 464, 715 S. Ct. 456

+ RRR See ESR rey re ap Meaty at

Page

Table of Cited Authorities

Page

Statutes:

ee gh Ee Beit | Seppe oy Paki nee ations |

SP es OB EPMEEED sk hdd oe es Cia a ee

APPENDIX

Appendix A — Summary Order Of The United States

Court Of Appeals For The Second Circuit Filed April

ne BEDS ie ee eee bs pale eid ches tah sie ren la

Appendix B — Supplemental Decision And Order Date

WOE Fe SUES oie von bc ebankins cite Sa

Appendix C — Decision And Order Dated April 14,

gb ORAS Ta Derg PM aA cea et Sy eraser aa 19a

Appendix D — Decision And Order Before The National

Labor Relations Board, Division Of Judges, New York

Branch Office Dated September 30, 1996 ........ 42a

Appendix E — Order Of The United States Court Of

Appeals For The Second Circuit Denying Petition For

Rehearing Filed July 21, 1998 .................. 67a

were ail ae. TRE a teno 3 me a ee

Petitioner Cassis Management Corp. (herein “Cassis”),

respectfully requests that a writ of certiorari be issued to review

the decision of the National Labor Relations Board and the

judgment of the United States Court of Appeals for the Second

Circuit.

OPINIONS BELOW

The decisions of the National Labor Relations Board appear

in Appendices B, C and D. The Summary Order of the United

States Court of Appeals for the Second Circuit is not published,

but can be found at 1998 WL 386197 (App. A).

STATEMENT OF JURISDICTION

The Summary Order of the United States Court of Appeals

for the Second Circuit was entered on April 22, 1998. The Court

of Appeals denied a timely petition for rehearing on July 21,

1998. (App. E.) The jurisdiction of this court is involved

pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 2(11) of the National Labor Relations Act, as

amended, 29 U.S.C. § 153(11) defines a “supervisor” as:

Any individual having authority, in the interest of

the Employer, to hire, transfer, suspend, lay off,

recall, promote, discharge, assign, reward or

discipline other employees, or reasonably to direct

them, or to adjust their grievances, or effectively

recommend such action, if in connection with the

foregoing, the exercise of such authority is not of a

merely routine or clerical nature, but requires the

use of independent judgment.

STATEMENT OF THE CASE

The fundamental questions in this case are whether Donald

Hoy is a supervisor or an employee within the meaning of the

Act and more specifically, whether the NLRB correctly

interpreted and applied Section 2(11) of the Act. Additionally,

a question exists as to whether the Second Circuit correctly

concluded there was substantial evidence to support the finding

Hoy was an employee rather than a statutory supervisor

notwithstanding the court’s finding of “factors militating in

favor of finding him to be a supervisor... .”

FACTS CONCERNING DONALD HOY’S

EMPLOYMENT STATUS

Cassis owns and manages the Mountainview Apartments

located in Dobbs Ferry, New York. The Mountainview

Apartments are situated on 15 acres of land and compromise

fourteen buildings of which there are a total of 262 apartments.

Commencing in or about 1993 and continuing forward,

Donald Hoy began serving the complex as a superintendent.

From in or about 1993, in his capacity as superintendent,

Hoy, who was provided with an on-premises apartment, was

not required to pay any rent, although the value of such

apartment was approximately $750 a month. No other employee

received such a benefit. In addition to being provided with a

rent-free apartment and a Jeep, Hoy received a gross weekly

salary of $100 and an additional weekly cash sum of $350. In

contrast, maintenance men and porters received pay rates of

$8.00 per hour.

In his capacity as superintendent, Hoy would meet each

morning at 8:00 a.m. with the complex’s maintenance men and

Feat cathy Dhaene eh

PGR ee a Se Sen Oe a

porters and issue their work assignments for the day. Hoy,

would, on a daily basis, check upon the work of the maintenance

men and porters, resolve problems concerning job duties and,

when necessary, assign employees to assist their co-employees

in the performance of ticiz duties. Hoy worked from 8:00 a.m.

to 5:00 p.m., Monday through Friday and was on call 24 hours

a day.

As part of his duties as superintendent, Hoy regularly

exercised independent discretion by interviewing prospective

candidates for employment for the positions of maintenance

men and porter, reviewing their employment applications with

respect to work history and prior experience and weeding out

those candidates who he concluded were not suitable for the

job.

Having weeded out undesirable candidates, Hoy would

recommend to Complex General Manager George Cassis the

candidate to be selected to the position. In addition, Hoy would

verify the employment references provided by the prospective

candidates.

Hoy acknowledged that as superintendent he conducted

employment interviews with no less than five job candidates.

He specifically admitted on direct examination that he was “. . .

the supervisor of the property.”

Hoy acknowledged that he not only interviewed employee

Bunch, but hired him, reviewed the duties to be performed and

negotiated Bunch’s starting salary. In this connection, Hoy as

superintendent recommended wage increases to be paid to

maintenance men and porters.

Employees Louis Cioffi, Charles Allien and Dean

Cassametis testified that they took daily instructions from Hoy

as to the work to be performed and that Hoy would give them

specific tasks to perform in addition to their routine duties.

In connection with Hoy’s supervisory duties, maintenance

men and porters would directly notify him when they intended

to be absent due to illness or for other reasons. V hen Hoy went

on vacation on or about March 29, 1996, he left a detailed

schedule cf jobs to be performed by the maintenance men and

porters and left same with the complex office manager Kathy

Shea.

REASONS FOR GRANTING THE WRIT

THE PETITION SHOULD BE GRANTED BECAUSE

THERE WAS SUBSTANTIAL EVIDENCE TO FIND HOY

WAS A STATUTORY SUPERVISOR.

In its Summary Order (App. A at 3a) the Second Circuit

held that the

matter of whether Hoy was a supervisor within the

meaning of Section 29 U.S.C. § 152(11) presented

a close question. Some factors militated in favor of

finding him a supervisor, and some militated against

such a finding.

The court then proceeded to conclude that “there was evidence

to support an inference in either direction” as to whether Hoy

was Or was not a supervisor. (App. A at 4a).

Given the Second Circuit’s finding that there was evidence

to support an inference in either direction as to Hoy’s

supervisory status, it is urged that the court was incorrect tn

finding that there was substantial evidence to support the

NLRB’s decision.

The United States Supreme Court in Universal Camera

Corp., 340 U.S. 464, 715 S. Ct. 456 (1951) held:

Congress has merely made it clear that a reviewing

court is not barred from setting aside a Board

decision when it cannot conscientiously find that

the evidence supporting that decision is substantial,

when viewed in the light that the record in its

entirety furnishes, including the body of evidence

opposed to the Board’s view.

Significantly, evidence which is found to support an

inference “in either direction” would not appear to satisfy the

definition of “substantial evidence.” Likewise, evidence which

is found to support an inference in either direction and which

includes some factors that militate in favor of finding an

individual to be a supervisor and some evidence militating

against such a finding does not satisfy the Universal Camera,

supra, test of finding

that the evidence supporting the NLRB’s decision

is substantial, when viewed in the light that the

record in its entirety furnishes, including the body

of evidence oppesed to the Board’s view.

In Schnuck Markets, Inc. v. N.L.R.B., 961 F.2d 700 (8th

Cir. 1992), the Eighth Circuit observed as follows:

Meeting the substantial evidence standard ...

requires more than a parsing of the record for

evidence supporting the Board’s decision. We also

must consider evidence in the record that fairly

detracts from the weight of the decision.

Pinar eee eee ee

Significantly, the Second Circuit failed to take into account

the evidence which detracted from the NLRB’s decision to the

effect that Hoy was an employee rather than a supervisor.

Given the Second Circuit’s conclusion that there was

evidence which supported an inference in either direction as to

Hoy’s supervisory status and given the proposition that Section

2(11) should be read in the disjunctive, the Second Circuit

should have reached its own conclusions as to whether Hoy |

was a supervisor and reversed the NLRB’s decision.

Il.

THE PETITION SHOULD BE GRANTED BECAUSE

THE NLRB HAS MANIPULATED AND FAILED TO

CONSISTENTLY INTERPRET SECTION 2(11) IN THE

DISJUNCTIVE.

In 1994 the United States Court of Appeals for the Second

Circuit in N.L.R.B. v. Baby Watson Cheesecake, Inc., Lexis

3027, 1992 WL58825, 148 LLRM 2898, 2903 (2nd Cir. 1994)

held that in a assessing an “individual’s status, one must look

to his actual job duties and not simply to his job title or

classification.”

i ai al ee ee a ee Oe Re a a ee er ere A ea

In considering issues concerning supervisory status, the

Second Circuit in N.L.R.B. v. Baby Watson Cheesecake, Inc.,

supra, specifically concluded that the definition of a supervisor

is “intended to be read in the disjunctive so that, an employee

who meets any of the criteria set forth in this section is deemed

to be a supervisor within the meaning of the Act.” (See in accord

N.L.R.B. v. Monroe Tube Co., 545 F.2d 1320, 1324 (2nd Cir.

1976); Amalgamated Local Union 355 v. NLRB, 482 F.2d 996, :

999 (2nd Cir. 1973); NLRB v. Metropolitan Life Insurance, 405

F. 2d 1169, 1173 (2nd Cir. 1968); Maine Yankee Atomic Power

Co. v. NLRB, 624 F.2d 347, 360 (1st Cir. 1980).

CO aN NO Mees Set Te oe

The Second Circuit in Spentonbush/Redstar Company y.

NLRB, 106 F. 3d 484 (2nd Cir. 1997) observed that the NLRB

all too often rejects evidence which does not support its

preferred result and went on to point out that the NLRB’s

“manipulation” of the definition of supervisor had reduced the

deference that would otherwise be accorded to its holdings.

In Spentorbush/Redstar, supra, Circuit Judge Van

Graafeiland observed as follows:

The deference owed by the judiciary to the

decisions of the Board has been stated on numerous

occasions and need not now be reiterated here.

However, the Board’s biased mishandling of cases

involving supervisors increasingly has called into

question our obeisance to the Board’s decisions in

this area.

In March of 1998, the Second Circuit again had occasion

in NLRB v. Meenan Oil Co., 139 F.3d 311 to review the NLRB’s

application of Section 2(1 1) of the Act. In this decision, the

Second Circuit concluded that it was appropriate to apply a

“more probing” standard of review. Specifically, the Second

Circuit held as follows:

If (1) an employee possesses at least one of the listed

kinds of authority and (2) the exercise of that power

involves the use of independent judgment which

goes beyond the routine and clerical, the employee

qualifies as a supervisor.

Given the fact that the Second Circuit concluded that there

were factors which militated in favor of finding Hoy to be a

supervisor and based upon the legal proposition that Section

2(11) of the Act is to be read in the disjunctive, the Second

a a a eta area

Circuit in accord with the decision in Universal Camera Corp.

v. NLRB, supra, should have found that Hoy was a supervisor

and reversed the decision of the NLRB.

In the case before this court, there is no substantial evidence

to support the NLRB’s determination that Donald Hoy was an

employee rather than a supervisor. To the contrary, there is

substantial evidence in the record to establish as concluded by

both Administrative Law Judge Green (App. D at 48a-51a) and

by dissenting NLRB member Higgins that Hoy was a supervisor

within the meaning of the Act. (App. C at 39a).

Upon a review of the record, it is respectfully urged that :

NLRB Chairman Gould and member Fox chose to disregard |

the findings and conclusions of Administrative Law Judge

Green as to Hoy’s supervisor status and in fact mischaracterized ,

and misstated the record in order to reach the conclusion that

Hoy was not a supervisor. (App. C at 23a).

In view of the fact that Section 2(11) of the Act is intended

to be read in the disjunctive and upon reviewing Hoy’s various

duties, it is clear that Hoy had authority to hire and/or effectively

recommend hiring, to transfer employees, to assign employees

and to responsibly direct employees in the course of their duties.

In addition, the record indicates that Hoy had authority to adjust :

grievances and/or to effectively recommend action to be taken 3

with respect to such grievances. ,

Significantly, the record clearly established that Hoy was

given independent authority to interview candidates for

employment and to weed out those candidates whom he

concluded did not have the qualifications or other attributes to

successfully fill the positions involved. (App. D at 50a and App.

C at 39a).

Clearly, when one considers Hoy’s duties and

responsibilities, one can only conclude, as did the

Administrative Law Judge and dissenting NLRB member

Higgins, that Hoy was a “supervisor” and exercised his authority

not merely in a routine or clerical nature but by means of the

use of independent judgment.

CONCLUSION

This case presents questions of exceptional and ongoing

importance. Specifically, this case presents the question of

whether the NLRB is obligated to consider and apply Section

2(11) of the Act in the disjunctive when determining the

supervisory status of an individual. Additionally, by granting

this petition for certiorari, this court will have the opportunity

of reiterating and amplifying upon the role of Courts of Appeal

in determining whether substantial evidence exists to support

NLRB factual findings and conclusions of law.

Accordingly, Petitioner respectfully requests that the

petition for writ of certiorari be granted.

Respectfully submitted,

ROBERT M. ZISKIN

Attorney for Petitioner

6268 Jericho Turnpike

Suite 12A

Commack, New York 11725

(516) 462-1417

APPENDIX

APPENDIX A — SUMMARY ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT FILED APRIL 22, 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED

IN THE FEDERAL REPORTER AND MAY NOT BE

CITED AS PRECEDENTIAL AUTHORITY TO THIS OR

ANY OTHER COURT, BUT MAY BE CALLED TO THE

ATTENTION OF THIS OR ANY OTHER COURT IN A

SUBSEQUENT STAGE OF THIS CASE, IN A RELATED

CASE, OR IN ANY CASE FOR PURPOSES OF

COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse, Foley

Square, in the City of New York, on the Twenty-Second day

of April, one thousand nine hundred and ninety-eight.

Present! HONORABLE AMALYA L. KEARSE,

HONORABLE ROGER J. MINER,

Circuit Judges,

HONORABLE CAROL BAGLEY AMON,

District Judge*.

* Honorable Carol Bagley Amon, of the United States District court

for the Eastern District of New York sitting by designation.

Appendix A

No. 97-4125

-4355

CASSIS MANAGEMENT CORPORATION,

Petitioner-Cross-Respondent,

NATIONAL LABOR RELATIONS BOARD,

Respondent-Cross- Petitioner.

Appearing for Petitioner —

Cross-Respondent: Robert M. Ziskin, Commack, N.Y.

Appearing for Respondent —

Cross-Petitioner: Ana L. Avendafio, NLRB,

Washington, D.C.

Petition for review of orders of the National Labor Relations

Board; cross-petition by National Labor Relations Board for

enforcement of its orders.

This cause came on to be heard on the transcript of record

from the National Labor Relations Board and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the orders of the National

Labor Relations Board be, and they hereby are enforced, and

that the petition for review be and hereby is denied.

Appendix A

Petitioner-Cross-Respondent Cassis Management

Corporation (“Cassis”) petitions for review of two orders of the

Nationa! Labor Relations Board (the “Board”), 323 NLRB No.

68 dated April 14, 1997, 324 NLRB No. 55 dated August 29,

1997, requiring it to, inter alia, recognize and bargain with a

union and reinstate several terminated employees. The Board

cross-petitions for enforcement of its orders. Cassis’s principal

contention is that the Board erred in finding that its employee

Donald Hoy was not a supervisor within the meaning of 29

U.S.C. § 152(11). It also contends that the Board erred in

determining that another employee was an employee rather than

an independent contractor and that certain other terminated

employees should be reinstated. We reject all of Cassis’s

contentions.

The Board's findings of fact are “conclusive” on appeal, so

long as they are supported by substantial evidence on the basis

of the record considered as a whole. See 29 U.S.C. § 160(f)

(1994): Universal Camera Corp. v. NLRB, 340 U.S. 474,

487-88 (1951). Substantial evidence “is more than a mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see, e.g.,

Holo-Krome Co. v. NLRB, 947 F.2d 588. 592 (2d Cir. 1991)

Although we consider both the evidence that supports the

Board's decision and the evidence that Suggests a contrary result,

see, e.g., Universal Camera Corp. v. NLRB, 340 U.S. at 487-

88, this Court may not “displace the Board’s choice between

two fairly conflicting views, even though the court would

justifiably have made a different choice had the matter been

before it de novo,” id. at 488.

In the present case, the matter of whether Hoy was a

supervisor within the meaning of 29 U.S.C. § 152 (11) presented

Appendix A

a close question. Some factors militated in favor of finding

him a supervisor, and some militated against such a finding.

Given that there was evidence to support an inference in either

direction, we conclude that the Board's finding that Hoy was

not a supervisor was supported by substantial evidence and

may not be overturned.

We reject Cassis’s other contentions substantially for the

reasons stated in the Board’s Decision and Order dated April

14, 1997.

We have considered all of Cassis’s contentions in support

of its petition for review and have found in them no basis for

overturning the orders of the Board. The petition for review is

denied; the petition for enforcement is granted.

FOR THE COURT:

GEORGE LANGE III, Clerk

by: s/ Lucille Carr

APPENDIX B — SUPPLEMENTAL DECISION AND

ORDER DATE MAY 7, 1997

Cassis Management Corporation and Service Employees

International Union, Local 32E, AFL-CIO, Case 2-CA-

29311

August 29, 1997

SUPPLEMENTAL DECISION AND ORDER

BY CHAIRMAN GOULD AND

MEMBERS FOX AND HIGGINS

On September 30, 1996, Administrative Law Judge

Raymond P. Green issued a decision in this case finding that

the Respondent discharged the entire bargaining unit, including

Charles W. Morrow, in violation of Section 8(a)(3) and (1) of

the Act, that Donald Hoy was a supervisor within the meaning

of Section 2(11) of the Act. that the authorization cards Hoy

Solicited were invalid, and that there was no basis for a

bargaining order under the principles enunciated in NLRB y.

Gissel Packing Co., 395 U.S. 575 (1969). On April 14, 1997,

The National Labor Relations Board issued a decision adopting

the judge's findings concerning the unlawful discharge of the

bargaining unit employees, but the Board reversed the judge’s

findings concerning Hoy’s Supervisory status, the validity of

the authorization cards, and the appropriateness of a bargaining

order.' Thus, the Board found that Hoy was not a Statutory

supervisor, that he should be offered reinstatement and backpay

along with the rest of the bargaining unit, that the authorization

1. 323 NLRB No. 68 (Chairman Gould and Member Fox; Member

Higgins dissenting).

neers Sate tant ene ts

Appendix B

cards he solicited were valid, and that the cards demonstrated

that a majority of the employees in the unit wished to be

represented by the Union. The Board further found that, because

of the Respondent’s egregious unfair labor practices, a

bargaining order was presumptively appropriate.

The National Labor Relations Board, however, did not

order the Respondent to bargain with the Union because of

the need to resolve a conflict in the hearing testimony as to

facts concerning the Respondent’s allegation that union officials

had engaged in picket line misconduct. The Respondent claims

that the alleged misconduct precludes the issuance of a

bargaining order under the doctrine set forth by the Board in

Laura Modes Co., 144 NLRB 1592 (1963). The board

remanded the matter to the judge for the purpose of making

credibility resolutions concerning the conflicting testimony,

and findings of fact and conclusions of law concerning the

Respondent’s defense based on Laura Modes Co.

On May 7, 1997, the judge issued his supplemental

decision. The Respondent filed exceptions and a supporting

brief, and the General Counsel filed and answering brief.

The Board has considered the supplemental decision and

the record in light of the exceptions and briefs and has decided

to affirm the judge’s rulings, findings,? and conclusions set

forth in the supplemental decision, and to issue the Order set

2. The Respondent has excepted to some of the judge’s credibility

findings. The Board's established policy is not to overrule an

administrative law judge’s credibility resolutions unless the clear

preponderance of all the relevant evidence convinces us that they are

incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188

F.2d 362 (3d Cir. 1951). We have carefully examined the record and find

no basis for reversing the findings.

Appendix B

forth below,’ which supersedes the order previously entered

in this proceeding.‘

3. On May 12, 1997, the Respondent filed a motion for

reconsideration and to reopen the record, and the General Counsel

subsequently filed a reply. In its motion for reconsideration, the

Respondent contends, among other things, that in reaching its conclusion

that Hoy was not a statutory supervisor, th: Board erroneously found on

p. 2 of its decision that “Hoy and the other unit employees met with

(Property Manager] Shea daily in the office at 8 a.m. and discussed the

work that needed to be done.” The Respondent asserts that the Board’s

finding is inconsistent with Shea’s testimony that she did not report to

work until 9 a.m.

Even assuming arguendo that Shea was not present for the 8 a.m.

meetings, the Board would still reach the same result. The question

whether Shea was present at the morning meetings is immaterial because

the Board found that Hoy’s role at those meetings was not indicative of

supervisory status. Thus, the Board found that at the daily meetings

Hoy merely informed “his coworkers if something had occurred during

the night that they were required to deal with before they returned to

their normal routine,” that “no independent judgment was required to

determine what problems constituted emergencies,” and that “Hoy’s

announcements of emergency repairs cannot be considered evidence of

supervisory authority.” Cassis, supra, slip. op. 3.

In all other respects, the Respondents’s motion for reconsideration

is denied as raising nothing not previously considered and as lacking in

merit.

In its motion to reopen the record, the Respondent asserts that

Donald Hoy is deceased, and therefore a reinstatement order as to Hoy is

not appropriate. The General Counsel acknowledges that Hoy is

deceased, and therefore submits that there is no need to reopen the

record on this matter. Accordingly, we shall modify the Order by deleting

Hoy’s name from the list of employees to be reinstated and by providing

that his estate shall be made whole.

(Cont'd)

Appendix B

(Cont'd)

The Respondent also asserts that the record must be reopened to

demonstrate changed circumstances affecting the reinstatement of the

discriminatees. First, the Respondent contends that it should be permitted

to offer evidence that certain of the discriminatees are not entitled to

reinstatement, because they were unable to perform their work in a

satisfactory manner. We find that this issue either was, or should have

been, litigated by the Respondent during the underlying unfair labor

practice hearing. In addition, we find that the Respondent has failed to

demonstrate that the evidence it seeks to adduce on this matter is either

newly discovered since the close of the hearing or was previously

unavailable. See sec. 102.48(a)(1) of the Board’s Rules. Second, the

Respondent submits that it should be given the opportunity to introduce

evidence that since the April 1996 discharges of the discriminatees, it

changed the nature of its business operation by contracting out to another

company the maintenance work that the discriminatees performed. The

mere fact that the Respondent may have subcontracted out his work

does not relive the Respondent of its obligation to reinstate unlawfully

discharged employees. See Stalwart Assn., 310 NLRB 1046, 1055

(1993); Central Air Corp., 216 NLRB 204, 214 (1975). Rather, the

Respondent must prove that it would have subcontracted the work in

question even if the discriminatees had not been terminated, and during

the compliance stage of this proceeding the Respondent will have an

opportunity to present evidence bearing on that issue. See Ellis & Watts

Products, 143 NLRB 1269, 1271 (1963), enfd. 344 F.2d 67 (6th Cir.

1965). Accordingly, we deny the Respondent's motion to reopen the

record. -

4. Member Higgins joins the majority in affirming the judge’s

finding that there is not credible evidence of any picket line misconduct,

and in denying the Respondent's motion for reconsideration and to

reopen the record. However, he continues to adhere to his earlier

dissenting view of this case. Thus Member Higgins finds that Donald

Hoy was a supervisor and that union authorization cards cannot be used

to support a bargaining order. See Cassis Management Corp., 323 NLRB

No. 68 (April 14, 1997), Member Higgins dissenting.

Appendix B

In Laura Modes, the Board held that where a union

evidences total disinterest in enforcing its rights through the

peaceful legal process provided by the Act and instead resorts

t6 violence, the Board will refuse to issue a bargaining order,

even though the employer has violated the Act. Here, the judge

found, based on his credibility findings, that no agent of the

Union or prounion employee engaged in any picket line

misconduct, Specifically, the judge discredited the testimony

of the Respondent's witnesses and found that no threats were

made by union officials or agents to kill or physically harm

employees Reyes and Jusino, who had crossed the Union’s

picket line in order to perform work for the Respondent. As

Stated in footnote 2, supra, there is no basis for reversing the

judge’s credibility resolutions. Therefore, we find that there is

nothing to preclude a bargaining order under the doctrine set

forth in Laura Modes, supra.*

Accordingly, based on the judge's credibility findings in

his supplemental decision and our own findings in our prior

decision summarized above, we conclude that Respondent

violated Section 8(a)(5) and (1) of the Act by refusing to

recognize and bargain with the Union on April 4, 1996, and

we shall order the Respondent to bargain with the Union as

the exclusive representative of the employees in the bargaining

unit.

5. The Respondent excepts to the judge's failure to find that Union

Official Formisano threatened to suspend employee Reyes’ pension

checks and that thereafter Reyes’ pension payments were, in fact,

suspended. We find not merit in this exception. Any such alleged threats

are beyond the scope of the Board's remand, which was for the express

purpose of consideration of alleged death threats directed at Reyes or

other employees. In any event the record indicates that any cessation of

Reyes’ pension payments that may have occurred were in accord with

the terms of the Union's pension plan.

10a

Appendix B

ORDER

The National Labor Relations Board orders that the

Respondent, Cassis Management Corporation, Dobbs Ferry,

New York, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Discharging or otherwise discriminating against any

employee for supporting Service Employees International

Union, Local 32E, AFL-CIO or any other union.

(b) Refusing to recognize and bargain with the Union as

the exclusive collective-bargaining representative of its

employees in the following appropriate unit:

All full-time and regular part-time and regular part-

time cleaning, painting, and maintenance workers

employed by the Employer at its facility located at

200 Beacon Hill Road, Dobbs Ferry, New York,

excluding all managers and supervisors as defined

in the Act.

coercing employees in the exercise of the rights ,uaranteed

them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer

Charles Allien, Louis Cioffi, Nicholas Michel, Joe Elias Moody

lla

Appendix B

J:., and Charles W. Morrow, full reinstatement to their former

jobs or, if those jobs no longer exist, to substantially equivalent

positions, without prejudice to their seniority or any other rights

or privileges previously enjoyed.

(b) Make Charles Allien, Louis Cioffi, Nicholas Michel,

Joe Elias Moody, Jr., Charles W. Morrow, and the estate of

Donald Hoy, whole for any loss of earnings and other benefits

suffered as a result of the discrimination against them in the

manner set forth in the remedy section of the judge's decision.

from its files any reference to the unlawful discharges of Charles

Allien, Louis Cioffi, Nicholas Michel, Joe Elias Moody Jr.,

and Charles W. Morrow, and within 3 days thereafter notify

them in writing that this has been done and that the discharges

will not be used against them in any way.

(d) On request, recognize and bargain with the Union as

the exclusive collective-bargaining representative of its

employees in the appropriate unit concerning wages, hours,

and other terms and conditions of employment and, if an

understanding is reached, embody the understanding in a

signed agreement.

(e) Preserve and, within 14 days of a request, make

available to the Board or its agents for examination and

copying, all payroll records, social security payment records,

timecards, personnel records and reports and all other records

necessary to analyze the amount of backpay due under the

terms of this Order.

(f) Within 14 days after service by the Region, post at its

Dobbs Ferry, New York facility copies of the attached notice

12a

Appendix B

marked “Appendix.” ® Copies of the notice, on forms provided by

the Regional Director for Region 2, after being signed by the

Respondent's authorized representative, shall be posted by the

Respondent and maintained for 60 consecutive days in

conspicuous places including all places where notices to

employees are customarily posted. Reasonable steps shall be taken

by the Respondent to ensure that the notices are not altered,

defaced, or covered by any other material. In the event that, during

the pendency of these proceedings the Respondent has gone out

of business or closed the facility involved in these proceedings,

the Respondent shall duplicate and mail, at its own expense, a

copy of the notice to all current employees and former employees

employed by the Respondent at any time since April 11, 1996.

(g) Within 21 days after service by the Region, file with the

Regional Director a sworn certification of a responsible official

on a form provided by the Region attesting to the steps the

Respondent has taken to comply.

Dated, Washington, D.C. August 29, 1997

William B. Gould IV, Chairman

Sarah M. Fox, Member

John E. Higgins, Jr., Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

6. If this Order is enforced by a judgment of a United States court

of appeals, the words in the notice reading “Posted by Order of the

National Labor Relations Board” shall read “Posted Pursuant to a

Judgment of the United States Court of Appeals Enforcing an Order of

the National Labor Relations Board.”

13a

Appendix B

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated

the National Labor Relations Act and has ordered us to post

and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize

To form, join, or assist any union

To bargain collectively through representatives

of their own choice *

To act together for other mutual aid or protection

To choose not to engage in any of these

protected concerted activities.

WE WILL NOT discharge or otherwise discriminate

against any employee for Supporting Service Employees

International Union, Local 32E, AFL-CIO or any other union.

WE WILL NOT refuse to recogni.. and bargain with

Service Employmees International Union, Local 32E, AFL-CIO

as the exclusive collective-bargaining representative of

employees in the following appropriate unit:

l4a

Appendix B

All full-time and regular part-time cleaning painting,

and maintenance workers employed at our facility

at 200 Beacon Hill Road, Dobbs Ferry, New York,

excluding all managers and supervisors as defined

in the Act.

WE WILL NOT in any other manner interfere with,

restrain, or coerce employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s

Order, offer Charles Allien, Louis Cioffi, Nicholas Michel, Joe

Elias Moody Jr., and Charles W. Morrow, full reinstatement to

their former jobs or, if those jobs no longer exist, to

substantially equivalent positions, without prejudice to their

seniority or any other rights or privileges previously enjoyed.

WE WILL make Charles Allien, Louis Cioffi, Nicholas

Michel, Joe Elias Moody Jr., and Charles W. Morrow, and the

estate of Donald Hoy, whole for any loss of earnings and other

benefits suffered as a result of the discrimination against them,

with interest.

WE WILL, on request, recognize and bargain with Service

Employees International Union, Local 32E, AFL-CIO as the

exclusive collective-bargaining representative of our employees

in the appropriate unit concerning wages, hours, and other

terms and conditions of employment and, if an understanding

is reached, WE WILL embody the understanding in a signed

agreement.

WE WILL, within 14 days from the date of the Board’s

Order, remove from our files any reference to the unlawful

discharges of Charles Allien, Louis Cioffi, Donald Hoy,

15a

Appendix B

Nicholas Michel, Joe Elias Moody Jr., and Charles W. Morrow

and WE WILL, within 3 days thereafter, notify them in writing

that this has been done and that the discharges will not be

used against them in any way.

CASSIS MANAGEMENT CORPORATION

lan Penny Esq. and Lauri Kaplan Esq., for the General Counsel.

Robert Ziskin, Esq. and Stacey Ziskin, Esq., for the Respondent.

Mathew N. Persanis, Esq., for the Charging Party.

SUPPLEMENTAL DECISION

RAYMOND P. GREEN, Administrative Law Judge. On

April 14, 1997, the board issued its decision in this case wherein

it found that the employer had violated the Act in certain

respects. As part of that decision, the Board remanded a portion

of the case to me for further determination. In this regard, the

Board noted that two employees, Carlos Reyes and Israel

Jusino, were told by a union official at the picket line that he

wanted to kill them. This was denied by the Union’s witnesses

and the Board remanded this question for a credibility finding.

I have reviewed again the relevant portions of the transcript

and have considered the briefs previously filed by the parties.

I have also considered the demeanor of the witnesses in making

the following conclusions. (In conjunction with the transcript

and my own notes taken at the hearing, I recall these witnesses,

notwithstanding that their testimony was taken on July 31 and

August 1, 1996.) As the previously filed briefs dealt with this

contention, there is no need for further briefing on this issue.

16a

Appendix B

Therefore, based on the record as a whole, the briefs filed by

the parties and my observation of the demeanor of the witnesses,

I make the following findings.

Both of the witnesses presented by the Respondent were

hired as replacements for the illegally discharged employees.

One of them, Carlos Reyes, had previously worked for the

employer and indicated that he had received lots of favors

from George Cassis in the past. The testimony of George Cassis

also indicated that there was some animosity between Hoy and

Reyes.

Reyes testified that he was threatened every day with

statements by the pickets and by union officials to the effect

that they wanted to kill him. He pointed specifically to Anthony

Formisano, a business representative, as being one of the

people who made this threat. Reyes also testified that Formisano

made a threat to kill him, when handing him a piece of paper

which was a charge by the Union. (R. Exh. 13.) In the latter

regard, Reyes testified that a policeman was present when he

got this paper.

Jusino testified that thai one or more of the people on the

picket line said, “he was going to kill one of — he want to

poke us.” He went on to testify that the pickets called Reyes

and old man and said that the was going to lose his check.

According to Jusino, statements were made to himself and

Reyes almost every day for about 2 weeks after the picketing

started. When asked if he recognized Formisano in the

courtroom, Jusino said that he did. However, when asked if

Mr. Formisano made the threats, Jusino said that he did not.

When asked who made the threats to kill or comment about

poking, Jusino said that it “was a colored guy who was saying

iesiiniteeemmmicaitalialianasaaeaaiiiiiil

17a

Appendix B

every day that he wanted to kill one of you. He wanted to

poke us.”

Formisano and Union Business Agent Angel Figueroa

testified that they supervised the picketing and were there

almost every day. Both credibly denied making any threats to

kill either Reyes or Jusino. Both credibly testified that no such

threats were made in their presence by any of the other people

on the picket line. With respect to the charge noted above,

Formisano testified that when he tried to hand it to Reyes, the

latter became very agitated and a policeman came over to

explain to Reyes that all he (Formisano) wanted was to hand

him the piece of paper.

The General Counsel called police officers Curt Giacobbe

and Gregory Vince to testify in this matter. Both testified that

as far as they observed, the picketing was peaceful and without

any incidents of threats or violence.

Officer Giacobbe testified to the incident when Formisano

gave the paper to Reyes and his testimony was that Formisano

made no threats during that incident.

Officer Vince testified that he was dispatched to the picket

line on three occasions, once when it was reported that the

pickets were on the property and the other two times when it

was reported that there was some blockage of entrances. In

describing what he saw when he arrived, Officer Vice testified

that he saw “a peaceful demonstration of numerous picketers

Standing on the street area.” There was no indication in his

testimony, or in any other testimony, that Reyes and Jusino

had ever complained to the police about alleged threats of

physical harm or alleged threats to kill them.

18a

Appendix B

In conclusion, I do not credit the testimony of Reyes and

Jusino about the alleged threats.

Dated Washington, D.C. May 7, 1997

19a

APPENDIX C — DECISION AND ORDER

DATED APRIL 14, 1997

Cassis Management Corporation and Service Employees

International Union, Local 32E, AFL-CIO. Case

2-CA-29311

April 14, 1997

DECISION AND ORDER

BY CHAIRMAN GOULD AND

MEMBERS FOX AND HIGGINS

On September 30, 1996, Administrative Law Judge

Raymond P. Green issued the attached decision. The General

Counsel and the Respondent filed exceptions, supporting briefs,

and answering briefs.

The National Labor Relations Board has considered the

decision’ and the record in light of the exceptions and briefs

and has decided to affirm the judge’s rulings, findings,’ and

conclusions only to the extent consistent with this decision.

We agree with the judge’s findings that the Respondent

discharged the entire bargaining unit, including employee

Charles W. Morrow, in violation of Section 8(a)(3) and (1) of

* We correct the following inadvertent error in sec. Il, A, par. 11,

of the judge’s decision “Branch” should read “Bunch.”

1. The Respondent has excepted to some of the judge’s credibility

findings. The Board's established policy is not to overrule an administrative

law judge’s credibility resolutions unless the clear preponderance of all

the relevant evidence convinces us that they are incorrect. Standard Dry

Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).

We have carefully examined the record and find no basis for reversing

the findings.

20a

Appendix C

the Act, and that the unit employees named in the recommended

Order should be offered reinstatement and be made whole for

their losses. We do not agree, however, with the judge’s findings

that Donald Hoy is a supervisor within the meaning of Section

2(11) of the Act. Accordingly, we reverse the judge and find

that Hoy was unlawfully discharged, that the union

authorization cards solicited by Hoy were valid, that the Union

demonstrated that a majority of the employees in the bargaining

unit wished to be represented by the Union, and therefore, that

there is a basis for a bargaining order under the principles

enunciated in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

Tue Facts

The Respondent is owned and operated by the Cassis

family. The Respondent owns and manages the 262 unit

Mountainview Apartments. As of April 4, 1996,’ the following

individuals were employed at Mountainview: General Manager

George Cassis; Property Manager Kathleen Shea (a stipulated

supervisor); office clerical Carol McNiff; Superintendent

Donald Hoy; handymen Joe Moody, Charles Morrow, and Dean

Cassimitis (a family member and not part of the unit); and

porters Charles Allien, Louis Cioffi, and Nicholas Michel.

In the second or third week of March, Hoy met with

officials of the Union, obtained authorization cards, signed a

card himself, and solicited the other employees to sign cards.

Union Attorney Matthew Parsanis, by a letter dated March 26,

requested recognition based on cards signed by a majority of

the Respondent’s six employees, namely, Hoy and employees

Ciofii, Moody, and Morrow. The Union received no reply to

its letter, and the Union filed a petition for a representation

election on April 3.

2. All dates are in 1996 unless otherwise indicated.

2la

Appendix C

The judge found that George Cassis received the Union’s

letter on or before April 4. On the afternoon of April 4, Kathleen

Shea informed all the employees that they were discharged.

Immediately thereafter, Charles Morrow telephoned George

Cassis, who said that he had gotten a letter from the Union,

that he did not want a union, and that the employees were all

terminated. That same afternoon Hoy received a call from Shea

while he was on vacation. Shea told Hoy that Cassis instructed

her to fire the entire crew because they had gone to the Union.

A. Hoy’s Supervisory Status

The judge found that Hoy was a statutory supervisor. The

General Counsel has excepted, and we find merit in this

exception. It is well settled that the burden of proving

supervisory status is upon the party asserting it.’ Thus, the

burden was on the Respondent to establish Hoy’s supervisory

status. Contrary to the judge, we find that the Respondent has

failed to meet that burden.

Hoy became employed by the Respondent through his

mother, who was the property manager until her retirement in

June 1994. She assigned him to be the superintendent in 1990.

The porters mainly perform cleaning functions, and handymen

or maintenance employees perform various types of repairs,

although there is a degree of overlap in duties between these

two classifications. When the type of repair requires the use of

3. Chevron U.S.A., Inc., 309 NLRB 59, 62 (1992), enfd. 28 F.3d

107 (9th Cir. 1994) (unpublished table decision); George C. Foss Co. v.

NLRB, 752 F.2d 1407, 1410 (9th Cir. 1985).

22a

Appendix C

an outside contractor, George Cassis makes the decision to hire

outside contractors.

When Hoy’s mother retired, the Respondent hired Shea to

be the property manager. Shea works in the office and

supervises the secretary. She handles the collection of rents,

screens applicants for apartments, acts as a liaison between the

Respondent and it: attorneys and tenants, receives and enters

in the log book tenant requests for repairs, prepares the payroll,

and, by her own admission, supervises unit employees.

Hoy lived in a rent-free apartment valued at $700 to $800

per month. His wages were $450 per week, the same as those

of handyman Joe Moody, but less than those received by family

member Dean Cassimitis. Hoy was scheduled to work from

8 a.m. to 4 p.m., Monday through Friday, but was on call 24

hours a day. Hoy reported to Shea and George Cassis. Hoy

performed boiler maintenance and landscaping, as well as

maintenance and repair work on buildings and apartments.

George Cassis came to the property once or twice a week

and met with Shea and Hoy. They discussed matters such as

equipment needs, new repairs, the need for outside contractors,

and the expenditure of money. Hoy asked for direction on how

to handle particular problems, and Cassis gave Hoy specific

directions. When something special arose, Cassis called Hoy

at home.

Shea informed Hoy of tenant complaints and repairs that

needed to be made. Hoy and the other unit employees met with

Shea daily in the office at 8 a.m. and discussed the work that

needed to be done. Additionally, employees looked at the log

book to determine the next project to be performed.

23a

Appendix C

Like Shea, Hoy interviewed job applicants and eliminated

those he deemed to be unqualified. Significantly, George Cassis

conducted his own interviews with the qualified candidates

before making a hiring decision.

In his decision, the judge repeatedly expressed doubt

concerning his conclusion that Hoy was a supervisor. For

example, the judge stated that “[{a]s Hoy’s relationship to the

company was one which evolved over time and was not reduced

to any writing, the evidence regarding his supervisory status

is, at least to my mind, ambiguous.” The judge’s decision is, at

best, equivocal regarding his findings as to Hoy’s authority to

effectively discharge, hire, or reward employees.* The judge

4. We find that the Respondent has not Sustained its burden of

demonstrating that Hoy had the authority to discharge, hire, or reward

unit employees, or effectively to recommend such action. Concerning

Hoy’s discharge recommendations. the judge found that “his

recommendations had mixed results.” Although Hoy successfully

recommended the discharge of Shawn Bunch, the Respondent ignored

Hoy's repeated recommendations that Moody be terminated for

absenteeism. There is no evidence that Moody was even disciplined for

his absenteeism. Hoy continually recommended that Carlos Reyes be

terminated. The judge found that Cassis finally “acceded” to this request.

We do not adopt this finding, however, because Reyes, Cassis, and Hoy

all testified that Reyes was never discharged. When the record evidence

is considered as a whole, we find that the Respondent has failed to show

that Hoy’s discharge recommendations were generally followed.

Concerning Hoy’s role in the hiring process, his screening of

applicants to eliminate individuals lacking the necessary qualifications

is clearly not sufficient to establish 2(11) supervisory status. See The

Door, 297 NLRB 601, 602 (1990). With the exception of one isolated

instance in which Cassis agreed with Hoy’s recommendation to “try

out” Shawn Bunch, the son of a tenant, the record shows that Hoy’s

(Cont'd)

24a

. Appendix C

acknowledged that Hoy “lacked many of the criteria for

supervisory status.” Nevertheless, the judge found that Hoy

“assigned and directed the work” of unit employees, including

nonroutine work, in a manner requiring the exercise of

independent judgment, and he found Hoy to be a superviso: on

that basis.

We agree with the General Counsel that Hoy possessed no

primary indicia of supervisory status, including the authority

to assign and direct the employees in a manner requiring the

exercise of independent judgment.’ The Board has observed

(Cont'd)

hiring recommendations were independently evaluated by George Cassis.

Thus, as stated above, it was (Cassis’ practice to personally interview

job applicants before deciding to hire them.

The Respondent contends, and the judge found, that Hoy

successfully recommended that Moody be given a raise. We agree with

the General Counsel that the evidence concerning this matter does not

support a finding of supervisory status. The record reveals that Hoy

merely asked Cassis to restore to Moody an $80 cut in take home pay

lost because of an accounting change. The recommendation was not

followed with respect to the amount. Even assuming this incident

constituted an effective recommendation for a pay raise, it was the only

such instance in Hoy’s 6 years of employment. We find that it represents

far too isolated an occurrence to constitute evidence of meaningful

supervisory authority.

No specific evidence was presented that Hoy ever evaluated,

transferred, promoted, laid off, recalled, disciplined, or suspended

employees or adjusted their grievances.

5. The judge based his conclusion on two additional factors, namely

that Hoy was “the highest paid of the maintenance employees,” and that

(Cont'd)

25a

Appendix C

(Cont'd)

Hoy was the only person “who could Supervise the employees on a

day-to-day basis.” We agree with the General Counsel that the judge’s latter

two findings relate to secondary indicia of supervisory status. It is well

settled that secondary indicia of Supervisory authority are in themselves

not controlling. Consolidated Services, 321 NLRB 845, 846 fn. 7 (1996).

Furthermore, we find the judge’s findings regarding these nmatters to be

inaccurate. The judge incorrectly found that Hoy was the highest paid of all

the maintenance employees. The value of his apartment translates to $175

to $200 per week. This amount plus Hoy’s salary is still less than Cassimitis’

salary. Presumably, the free apartment was a benefit Hoy received in return

for being on call 24 hours a day.

The judge found that Hoy was the only person able to supervise the

employees at the complex “on a day-to-day basis.” In so finding, the judge

discounted the daily presence of admitted Supervisor Shea and the regular

visits of George Cassis and of George’s mother and the Respondent's general

partner, Carol Cassis. As noted, Shea was present daily on the property and

admitted she “supervise[d] the men — staff” at the complex. Her admission

is consistent with Hoy’s description of Shea as his “boss” and is not

diminished by her protestation that she lacked the technical experience in

building maintenance. Furthermore, she testified that she accompanied

Cassis on his inspections of the complex, during which they examined

“things in need of repair.” She further testified that during her daily

conversations with Cassis, she discussed “things in need of repair or what

was being done on it.” Hoy testified that he discussed work to be done with

Shea on a daily basis.

Conceming the visits of George Cassis, the record reveals that he was

intimately involved in supervising the work at the facility. He conducted

inspections of the property, noted the quality of employees’ work, examined

things in need of repair, discussed repairs with Shea, discussed with Hoy

the manner in which repairs were carried out, authorized equipment

purchases, hired contractors, and handled “whatever has to be taken care

of” at the complex. With respect to Carol Cassis, the record shows that on

one of her monthly visits to the property, she held a meeting with Hoy to

discuss the security of his job and then conducted a job interview with

applicant Charles Morrow. (Cont'd)

26a

Appendix C

that, in enacting Section 2(11), Congress stressed that only

persons with “genuine management prerogatives” should be

considered supervisors, as opposed to “straw bosses, leadmen,

... and other minor supervisory employees.” Chicago Metallic

Corp., 273 NLRB 1677, 1688 (1985). Therefore, the Board has

a duty to employees “not to construe supervisory status too

broadly because the employee who is deemed a supervisor is

denied . . . rights which the Act is intended to protect.” Id. at

1689. Additionally, the Board has often held that building

superintendents were nonsupervisory employees.°®

The judge conceded that the work performed by the porters

was “repetitive or routine” and involved mainly cleaning. The

judge found that “the same could not be said for the maintenance

work which sometimes involved repairs and upkeep to the

buildings, garage, and apartments.” He further concluded that

the maintenance work might require electrical work or light

plumbing, and that such functions “can hardly be called

routine.” We find, however, that the Respondent has not

presented sufficient evidence to support the judge’s conclusion

(Cont'd)

In sum, given the presence of Supervisor Shea at the apartment

complex, the regular visits of General Manager George Cassis, and

general partner, Carol Cassis, and the fact that Hoy was able to

communicate with George Cassis by telephone, we conclude that the

record does not support the judge's finding that Hoy was the only

individual able to supervise the unit employees on a daily basis. See

First Western Building Services, 309 NLRB 591, 603 (1992), and cases

cited therein.

6. Hagar Management Corp., 313 NLRB 438 (1993), J.R.R. Realty

Co., 273 NLRB 1523 (1985), enfd. 785 F.2d 46 (2d Cir. 1986), and

Elias Mallouk Realty Corp., 265 NLRB 3225 (1982). We do not agree

with the judge’s finding that these cases are distinguishable.

27a

Appendix C

that these duties are not routine. To the contrary, Shea

acknowledged that the handymen performed the same kinds of

routine minor repairs over and over again. The record reveals

that nonroutine repairs requiring specialized expertise, such as

bricklaying, plumbing involving pipe more than 2 inches in

diameter, heating, and tree and glass work, were consistently

performed by outside contractors.

The judge found that, during the morning meetings, Hoy

“reviewed the work that needed to be done and gave out

assignments.” We find that the judge has mischaracterized the

purpose of these meetings. According to Hoy’s testimony,

which was corroborated by Cioffi and Moody, the purpose of

the meeting was for Hoy, who lived at the complex, to inform

his co-workers if something had occurred during the night that

they were required to deal with before they returned to their

normal routine. The record is clear that the porters knew what

to do regarding cleaning, that the handymen obtained their work

assignments by referring to the tenant complaint book, and that

no independent judgment was required to determine what

problems constituted emergencies. We conclude that Hoy’s

announcements of emergency vepairs cannot be considered

evidence of supervisory authority.

Shea admitted that the handymen knew how to perform

their repair work and did not require any further direction once

they were notified of a tenant’s complaint. There is no evidence

that Hoy directed the employees in the performance of their

work or evaluated their skills. Rather, Hoy testified that he onl y

casually observed the work of other employees “in the process

of performing [his] own duties.”

We find that Hoy was an experienced senior employee

subject to regular higher supervision. His limited role in the

28a

Appendix C

parceling out of tasks to the other employees is attributable to

Hoy’s status as the most senior employee and the fact that he

lived on the premises. Accordingly, we conclude that Hoy did

not assign and direct the unit employees in a manner requiring

the use of independent judgment, nor did he possess any

other indicia of supervisory status within the meaaing of

Section 2(11).

We further find that Hoy was not an agent of the

Respondent. There is no evidence that Hoy was so closely

associated with management in such a manner that the

employees might assume that he was speaking for management

on union matters.’ On the contrary, it was clear that he openly

expressed to fellow employees his disagreement with

management’s benefit and other personnel policies. Neither did

Hoy enjoy any special employment privileges because of the

position that formerly had been held by his mother. Therefore,

we do not adopt the judge’s finding set forth at footnote 8 of

his decision that Hoy was an agent of the Respondent.

B. Hoy’s Unlawful Discharge

The judge found, and we agree, that the bargaining unit

employees (other than Hoy) were discharged because of their

union activity. In doing so, the judge properly rejected the

Respondent’s asserted reasons for each of the discharges. The

judge credited Hoy’s testimony that Shea informed Hoy that

he was being discharged because he and the other employees

went to the Union. We have found that Hoy was a unit

7. By contrast, in the case cited by the judge in fn. 8 of his decision,

there was testimony supporting the conclusion that the employees

tended to regard the superintendents as closely identified with

management.

29a

Appendix C

employee. Therefore, we conclude that Hoy was unlawfully

discharged in violation of Section 8(a)(3), along with the other

unit employees. Accordingly, we shall order that Hoy be offered

reinstatement and given backpay and other remedies along with

the other unit employees.

C. The Bargaining Order

Because we have found that Hoy was not a supervisor, we

reverse the judge’s finding that the authorization cards solicited

by him were tainted. We find that the cards are valid and

demonstrate that at the time of the Union’s demand for

recognition a majority of the employees — four of the six

members of the unit — wished to be represented by the Union.®

In determining whether a bargaining order is warranted to

remedy the Respondent’s unfair labor practices, we apply the

test set forth in NLRB v. Gissel Packing Co., 395 U.S. 575

(1969). There the Court identified two categories of cases in

which a bargaining order would be appropriate absent an

8. The Respondent has questioned the validity of Moody's card

because be did not sign it. The record shows that Moody filled out an

authorization card, but neglected to Sign it. Moody did, however, sign

and date a form attached to the card, titled “Application for Membership.”

Moody also paid for and received a union “Membership Book” dated

March 25, 1996. Further, when his failure to sign his authorization card

was brought to his attention by Hoy, Moody approved the signing of the

card by union delegate Davis. In these circumstances, we find that the

authorization card in question clearly demonstrates Moody’s desire to

be represented by the Union.

In view of our determination that Hoy is not a supervisor, we find

it unnecessary to pass on the General Counsel's contention that, even if

he is a supervisor, the cards he solicited should be counted.

30a

Appendix C

election. The first category of cases involves “exceptional

cases” marked by unfair labor practices that are so “outrageous”

and “pervasive” that traditional remedies cannot erase their

coercive effects, thus rendering a fair election impossible. The

second category involves “less extraordinary cases marked by

less pervasive practices which nonetheless have a tendency to

undermine majority strength and impede election processes.”

In this second category of cases, the Court reasoned that the

“possibility of erasing the effects of past practices and of

ensuring a fair election . . . by the use of traditional remedies,

though present, is slight and that employee sentiment once

expressed [by] cards would, on balance, be better protected by

a bargaining order.” Id. at 613, 614-615; Massachusetts Coastal

Seafoods, 293 NLRB 496, 498 (1989).

In this case, the Respondent discharged the entire

bargaining unit immediately after it learned that the Union

requested recognition. Additionally, the Respondent made it

clear to employees that the reason for the discharges was the

unit employees’ support for the Union.

Discharge of an entire bargaining unit is the ultimate

retaliation for union aciivity, the final assault on the

employment relationship. It is difficult to conceive of unfair

labor practices with more severe consequences for employees

or with more lasting effects on the exercise of Section 7 rights.

Mass discharges leave no doubt as to the response that the

employees will reasonably fear from their employer if, after

reinstatement, they persist in their support for a union. Even

newly hired employees Allien and Michel were not exempt from

the Respondent's unlawful “power display” against the work

force. See Majestic Molded Products v. NLRB, 330 F.2d 603,

606 (2d Cir. 1964). The coercive impact of the Respondent's

3la

Appendix C

discharge of the entire unit is increased by virtue of the

precipitate and reflexive nature of the discharges here, carried

out immediately after the Union requested recognition.’ Thus,

the discharges served abrupt, graphic, and indelible notice on

the employees that the Respondent controlled their employment,

to the exclusion of any outside agency that might seek an

improvement in their conditions. The impact of these discharges

is further heightened by the special stature and direct

involvement of George Cassis, who is an owner of the

Respondent and the son of Carol Cassis, who holds the largest

partnership share of the Respondent.

It can hardly be gainsaid that the Respondent's discharge

of the entire bargaining unit, in conjunction with the

Respondent’s contemporaneous statement to employees that the

reason for the mass discharge is their union activity, constitutes

unfair labor practices that are both outrageous and pervasive.

Therefore, we find that the Respondent's conduct places it in

the realm of those exceptional cases warranting a bargaining

order under category I of the Gisse/ standard, such that

traditional remedies cannot erase the coercive effects of the

conduct, making the holding of a fair election impossible."

9. Astro Printing Services, 300 NLRB 1028 (1990).

10. In a category I case like this one, the District of Columbia

Circuit has held that the Board “need not make detailed findings of the

type required for Category II cases, but instead must only make ‘minimal

findings’ of the lasting effect of unfair labor practices to support a

bargaining order.” Power Inc. v. NLRB, 40 F.3d 409, 422 (1994).

Consistent with the court's decision, we have set forth above our reasons

for finding that the detrimental effects of the unfair labor practices will

persist over time.

32a

Appendix C

Additional support for the bargaining order is provided by

Balsam Village Management Co., 273 NLRB 420 (1984), enfd.

792 F.2d 29 (2d Cir. 1986). In that case, the Board found that a

Gissel bargaining order was necessary to remedy what it

described as the employer’s “unlawful discharge of an entire

bargaining unit, lock, stock and barrel, for the express purpose

of avoiding the statutory bargaining obligation.” The court of

appeals upheld the Board’s decision, finding that “[a]ll of the

requirements for enforcement of a Gissel order have been met

here.” 792 F.2d at 33.

Furthermore, even assuming arguendo that the

Respondent's conduct does not fall within Gisse/ category I,

the unfair labor practices certainly qualify as “less pervasive

practices which nonetheless still have the tendency to

undermine majority strength and impede the election process.”

Gissel Packing. supra at 614. Thus, the discharge of union

adherents has long been considered by the courts to be a

“hallmark” violation of the Act because of its lasting effect on

election conditions. NLRB v. Janwica Towing, 632 F.2d 208,

212-213 (2d Cir. 1980). This unlawful conduct, which “goes

to the very heart of the Act,” NLRB v. Entwistle Mfg. Co., 120

F.2d 532, 536 (4th Cir. 1941), directly affected every member

of the bargaining unit. The Board has found that such hallmark

violations committed by high company officials in a small unit

have a tendency to undermine majority strength and impede

the election process. Airtex, 308 NLRB 1135 (1992). While it

is true that the discharged unit employees are entitled to

reinstatement and backpay, these remedies would not, in our

view, erase the coercive effect of the Respondent’s conduct.

The reinstated employees would not likely risk the recurrence

of a long period of unemployment by engaging in further

attempts to improve their working conditions, in the absence

33a

Appendix C

of a bargaining order. And given the swiftness and thoroughness

with which the Respondent reacted to the first sign of the

Union’s presence, the likelihood of it again resorting to illegal

conduct is clearly present."

In these circumstances, we conclude that the possibility of

erasing the effects of the Respondent’s unfair labor practices

by traditional remedies and the conducting of a fair election is

slight. We further find that the employee’s representational

desires as expressed by authorization cards would, on balance,

be better protected by a bargaining order and that, therefore, a

bargaining order is also warranted under category II of the

Gissel standard.

Accordingly, we conclude that a bargaining order is

presumptively appropriate in the circumstances of this

case.'* We shall not, however, order the Respondent to bargain

with the Union at this time, because of the need to resolve the

alleged picket line misconduct issue discussed below.

11. The Respondent acted so precipitously that the Union never

had sufficient time to utilize the Board's election machinery. (The

discharges occurred just | day after the Union’s election petition was

filed.) In light of this track record, it is doubtful at best whether the

Respondent would ever permit a fair election to be held.

12. In light of the Respondent's egregious and widespread

misconduct demonstrating a general disregard for the employees’

fundamental statutory rights, we find that a broad cease-and-desist order

is warranted under Hickmott Foods, 242 NLRB 1357 (1979).

34a

Appendix C

D. The Alleged Picket Line Misconduct

Concerning whether or not the Board should issue a

bargaining order, the Respondent in its exceptions contends

that certain picket line misconduct must preclude any such order

under the doctrine set forth by the Board in Laura Modes Co.,

144 NLRB 1592 (1963). At the hearing, the Respondent

presented testimony from two newly hired employees who

crossed the picket line, at least one of whom was a union

member, that a union official stated that he wanted to kill them.

The Union presented several witnesses who denied that any

such comments were made by anyone on the picket line and

represented that the individuals who picketed remained off of

the Respondent’s property and conducted themselves at all

times in a proper and orderly manner.

Because the judge’s finding regarding the supervisor status

of Hoy led him to conclude that there was no basis for a

bargaining order, the judge did not set forth this conflicting

testimony or make a credibility resolution concerning it. In light

of our conclusion that a bargaining order is presumptively

appropriate, we find it necessary to remand this proceeding

to the judge for a resolution of this conflict in the testimony

and for an analysis of the Respondent’s Laura Modes

defense.”

Accordingly, we shall remand this proceeding to the judge

for the purpose of making resolutions of credibility concerning

the testimony regarding the alleged picket line misconduct by

13. We find no basis in the record for the Respondent’s suggestion

in its brief in support of its exceptions that the Union’s picketing was

conducted improperly in any other respect.

35a

Appendix C

a representative of the Union, and findings of fact and

conclusions »f law concerning this evidence."

ORDER

The National Labor Relations Board orders that the

Respondent, Cassis Management Corporation. Dobbs Ferry,

New York, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Discharging or otherwise discriminating against any

employee for supporting Service Employees International

Union, Local 32E, AFL-CIO (the Union), or any other union.

(b) In any other manner interfering with, restraining, or

coercing employees in the exercise of the rights guaranteed

them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer

Charles Allien, Louis Cioffi, Donald Hoy, Nicholas Michel,

Joe Elias Moody Jr., and Charles W. Morrow, full reinstatement

to their former jobs or, if those jobs no longer exist, to

substantially equivalent positions, without prejudice to their

seniority or any other rights or privileges previously enjoyed.

14, Because this case involves a petition for relief pursuant to Sec.

10(j) of the Act, we ask the judge to issue his findings as expeditiously

as possible.

36a

Appendix C

(b) Make Charles Allien, Louis Cioffi, Donald Hoy,

Nicholas Michel, Joe Elias Moody Jr., and Charles W. Morrow

whole for any loss of earnings and other benefits suffered as a

result of the discrimination against them, in the manner set forth

in the remedy section of the judge’s decision.

from its files any reference to the unlawful discharges of Charles

Allien, Louis Cioffi, Donald Hoy, Nicholas Michel, Joe Elias

Moody Jr., and Charles W. Morrow, and within 3 days thereafter

notify them in writing that this has been done and that the

discharges will not be used against them in any way.

(d) Preserve and, within 14 days of a request, make

available to the Board or its agents for examination and copying,

all payroll records, social security payment records, timecards,

personnel records and reports, and all other records necessary

to analyze the amount of backpay due under the terms of this

Order.

_ (e) Within 14 days after service by the Region, post at is

Dobbs Ferry, New York facility copies of the attached notice

marked “Appendix.”'* Copies of the notice, on forms provided

by the Regional Director for Region 2, after being signed by

the Respondent's authorized representative, shall be posted by

the Respondent and maintained for 60 consecutive days in

conspicuous places including all places where notices to

15. If this Order is enforced by a judgment of a United States court

of appeals, the words in the notice reading “Posted by Order of the

National Labor Relations Board” shall read “Posted Pursuant to a

Judgment of the United States Court of Appeals Enforcing an Order of

the National Labor Relations Board.”

37a

Appendix C

employees are customarily posted. Reasonable steps shall be

taken by the Respondent to ensure that the notices are not

altered, defaced, or covered by any other material. In the event

that, during the pendency of these proceedings the Respondent

3 has gone out of business or closed the facility involved in these

proceedings, the Respondent shall duplicate and mail, at its

own expense, a copy of the notice to all current employees and

former employees employed by the Respondent at any time

since April 11, 1996.

OD DNS ie Ta

(f) Within 21 days after service by the Region, file with

the Regional Director a sworn certification of a responsible

official on a form provided by the Region attesting to the steps

the Respondent has taken to comply.

IT IS FURTHER ORDERED that this proceeding is

remanded to Administrative Law Judge Raymond P. Green for

the purpose of making credibility resolutions concerning the

testimony regarding alleged picket line misconduct, findings

of fact, conclusions of law, and recommendations concerning

the alleged picket line misconduct and its effect on the

appropriateness of a bargaining order.

IT IS ALSO FURTHER ORDERED that the judge prepare

and serve on the parties a supplemental decision containing

credibility resolutions, findings of fact, conclusions of law, and

recommendations. Following service of the supplemental

decision on the parties, the provisions of Section 102.46 of the

Board’s Rules and Regulations shall be applicable.

Dated, Washington, D.C. April 14, 1997

38a

Appendix C

William B. Gould IV, Chairman

Sarah M. Fox, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

39a

Appendix C

MEMBER HIGGINS, DISSENTING.

I agree with Administrative Law Judge Raymond P.

Green’s finding that Donald Hoy is a supervisor. Accordingly,

I dissent from the contrary conclusion of my colleagues.

SSD Fe sages oi ML WINE ORE STON te: aM cos

Hoy was the Respondent’s superintendent. As such, he

assigned and directed the work of unit employees. The judge

found that, except for the cleaning work, the work performed

by unit employees was not routine. More particularly, the repair

and upkeep of the buildings, garage and apartments involved

electrical and light plumbing functions. Both the selection of a

particular employees for specific tasks, as well as the direction

of these employees, required the use of independent judgment,

according to the judge. I would not disturb these findings.

Since Hoy was a supervisor, the cards that he solicited were

not valid, and they, therefore, cannot be used to support a

bargaining order.

Dated, Washington, D.C. April 14, 1997

John E. Higgins, Jr., Member

NATIONAL LABOR RELATIONS BOARD

1. My colleagues assert that the tenant complaint book would set

forth the work to be performed. However, this book did not set forth

which particular employees would be assigned specific tasks.

40a

Appendix C

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has ordered us

to post and abide by this notice.

Section 7 of the Act gives employees these nights.

To organize

To form, join, or assist any union

To bargain collectively through representatives

of their own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected

concerted activities.

WE WILL NOT discharge or otherwise discriminate

against any employee for supporting Service Employees

International Union, Local 32E, AFL-CIO or any other union.

WE WILL NOT in any other manner interfere with,

restrain, or coerce employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

4la

Appendix C

WE WILL, within 14 days from the date of the Board’s

Order, offer Charles Allien, Louis Cioffi, Donald Hoy, Nicholas

Michel, Joe Elias Moody Jr., and Charles W. Morrow, full

reinstatement to their former jobs or, if those jobs no longer

exist, to substantially equivalent positions, without prejudice

to their seniority or any other rights or privileges previously

enjoyed.

WE WILL make Charles Allien, Louis Cioffi, Donald Hoy,

Nicholas Michel, Joe Elias Moody Jr., and Charles W. Morrow

whole for any loss of earnings and other benefits suffered asa

result of the discrimination against them, with interest.

WE WILL, within 14 days from the date of The Board’s

Order, remove from our files any reference to the unlawful

discharges of Charles Allien, Louis Cioffi, Donald Hoy,

Nicholas Michel, Joe Elias Moody Jr., and Charles W. Morrow

and WE WILL, within 3 days thereafter, notify them in writing

that this has been done and that the discharges will not be used

against them in any way.

42a

APPENDIX D — DECISION AND ORDER BEFORE

THE NATIONAL LABOR RELATIONS BOARD,

DIVISION OF JUDGES, NEW YORK BRANCH

OFFICE DATED SEPTEMBER 30, 1996

UNITED STATES OF AMERICA

BEFORE THE NATIONAL

LABOR RELATIONS BOARD

DIVISION OF JUDGES

NEW YORK BRANCH OFFICE

CASE NO. 2-CA-29311

CASSIS MANAGEMENT CORPORATION

AND

SERVICE EMPLOYEES INTERNATIONAL UNION,

LOCAL 32E, AFL-CIO

Jan Penny Esq., and Lauri Kaplan Esq.,

Counsels for the General Counsel.

Robert Ziskin, Esq., and Stacey Ziskin, Esq.,

Counsel for the Respondent.

Mathew N. Persanis, Esg., Counsel for the Union.

DECISION

Statement of Case

Raymond P. Green, Administrative Law Judge. This case

was tried in New York, New York on July 22, 23, 24 and 31

and August 1, 1996. The charge and first amended charge were

43a

Appendix D

filed on April 11 and April 16, 1996. On May 30, 1996, a

Complaint was issued which, amended at the hearing, alleged

in substance.

1. That from March 22 to March 25, 1996, a majority of

employees in an appropriate unit, designated the Union as their

representative.

2. That on or about March 27, 1996, the Union requested

recognition in a unit consisting of

All full-time and regular part-time cleaning,

painting, and maintenance workers employed by the

Employer at its facility located at 200 Beacon Hill

Road, Dobbs Ferry, New York, excluding all

managers and supervisors as defined in the Act.

3. That on or about April 4, 1996, the Respondent

discharged all of its unit employees; to wit, Donald Hoy, Charles

W. Morrow, Louis Cioffi, Joe Elias Moody Jr., Charles Allien

and Nicholas Michel.

4. That the aforesaid conduct made a fair election

improbable and therefore that a bargaining order should be

issued.

Findings of Fact

I. Jurisdiction

The company, owns and manages various properties

including the Mountainview Apartments in Dobbs Ferry, New

44a

Appendix D

York. At the hearing, the company amended its Answer to admit

and | find that it is an employer engaged in commerce within

the meaning of Section 2(2), (6), and (7) of the Act and that the

Union is a labor organization within the meaning of Section

2(5) of the Act.

Il. Alleged Unfair Labor Practice’

(a) The Status of Donald Hoy

The Respondent consists of the Cassis family. The two

founders and general partners are Constantine and his wife Carol

Cassis. Their children, George, Nicholas, Emanuel and Elaine

Cassis, are limited partners. The children have a variety of

functions but are subordinate to the parents in terms of the

company’s management. This enterprise owns various

properties including an apartment complex called the

Mountainview Apartments, which is located on a 15 acre tract

of land in Dobbs Ferry, New York. The Respondent’s main

office and place of business is Freeport, New York, which is at

least an hours drive from the Dobbs Ferry complex.

George Cassis is the family member who is responsible

for, among other things, running the Mountainview Apartment

complex which is a group of 262 garden apartments in 14

buildings. In this regard, in addition to visiting other properties,

he visits this site about one or two times per week and consults

1. This company was found to have violated the Act in an earlier

case called Cassis Management Corp., 281 NLRB 1304 (1986). In that

case, which involved an apartment building in Freeport, New York, the

Respondent was held to have violated Section 8(a)(1) by unlawfully

interrogating an employee, and to have violated Section 8(a)(3) of the

Act by discharging an employee because he signed an authorization card

for Local 32B-32J.

45a

Appendix D

with either Donald Hoy, the superintendent or Kathy Shea, the

office manager. (1 he Complaint alleged and the Respondent

stipulated that Ms. Shea was supervisor within the meaning of

Section 2(11) of the Act). George Cassis’ son also works at

this complex as a maintenance person. George Cassis’ mother

has no operational functions with respect to this apartment

complex, although as we shall see further on, that she did make

one decision that was important in this case.

i should note that this is a small company which does not

have a highly defined hierarchy. As Hoy’s relationship to the

company was one which evolved over time and was not reduced

to any writing, the evidence regarding his supervisory status

is, at least to my mind, ambiguous.

Mr. Hoy became employed through his mother who was

the property manager until her retirement in June 1994. After a

period of time, she assigned him to be the superintendent and

it appears that she pretty much defined his role at the apartment

complex. In the past, there have been anywhere from between

3 to 6 other maintenance employees working at the complex at

any given time. These consist of porters who mainly do cleaning

functions and maintenance people who do various types of

repairs except where the extent or type of repair may require

the use of an outside contractor.? There is, however, a degree

of overlap and then it snowed profusely during 1995, all of the

employees were involved in snow removal.

When Mr. Hoy’s mother retired, the Respondent hired

Kathy Shea to be the property manager. She essentially works

2. When a repair may require the use of an outside contractor, this

is a matter which is discussed between George Cassis and Donald Hoy.

Mr. Cassis, obviously is the person who ultimately makes the decision

as to whether to use a contractor.

46a

Appendix D

in the office with a secretary and handles the collection of rents,

screens people who apply for apartments, acts as a liaison

between the company, its attorneys and tenants, receives and

enters tenant requests for repairs, does payroll and supervises

staff. As noted above, it was stipulated that Ms. Shea was a

supervisor within the meaning of Section 2(11) of the Act.

Contrary to General Counsel’s assertion that Mr. Hoy reported

to Shea, he testified that he considered himself to be on the

same level as Ms. Shea. It is noted that Shea testified that she

has no knowledge of repairs and maintenance and therefore

she cannot and does not give instructions to the maintenance

employees on these subjects.

The evidence shows that Mr. Hoy earned $450 per week

and received the free use of an apartment that was worth

between $700 and $800 per month. Thus, his total weekly

remuneration was about $625 to $650 per week. This was more

than any of the other porters and maintenance people working

at the facility. In addition, he had the use of a company vehicle.

Every morning, Mr. Hoy held a meeting with the employees

where he reviewed the work that needed to be done and gave

out assignments. Hoy testified that his job was to see that the

employees were doing their jobs correctly and that if they had

problems they would talk to him about them. He also testified

that employees would call him if they could not come in to

work. While it may be said that the porter functions were

repetitive or routine and mostly involved cleaning, the same

cannot be said for maintenance work which sometimes involved

repairs and upkeep to the buildings, garage and apartments.

Thus, the maintenance people might on_some occasions be

called upon to do electrical work while at other times be

es ea.

47a

Appendix D

required to do light plumbing. These functions, which can

hardly be called routine, were overseen by Mr. Hoy.’

By the Spring of 1996, there was quite of lot of repair and

maintenance work that had to be done. And because of the

extensive snow storms, which not only took time away from

repairs but created damage to the Structures, the backlog of

repairs was quite extensive.

Mr. Hoy admittedly interviewed job applicants and he could

eliminate from consideration, those people whose resumes or

prior experience he felt were not adequate for a position. Along

with Ms. Shea, he made hiring recommendations to George

Cassis, but it is fairly clear that his recommendations have not

always been followed.‘ Thus, in January 1996, Hoy

recommended to Mr. Cassis that Mr. Morrow be hired, but

someone else was hired instead. (Mr. Morrow was subsequently

hired in April 1996 but Mr. Hoy did not play any role in that

decision). On the other hand, Hoy and his mother interviewed

and recommended the hiring of Joe Moody in 1990. (Mr. Hoy,

on one occasion, also successfully recommended that Mr.

Moody receive a pay increase). And Mr. Hoy recommended

the hiring and subsequent discharge of Shawn Bunch in early

1996. (Bunch worked briefly as a porter).

3. Louis Cioffi, one of the alleged discriminatees testified that he

was employed as a landscaper and general worker whose job included

painting, cleaning hailways, and keeping the grounds maintained. He

testified that he would foliow a routine unless Hoy assigned him to some

other job that needed doing.

4. Mr. Hoy acknowledges that for some time before his discharge

and his union activity, his relationshin with George Cassis was strained.

This could account for the fact that his recommendations were not always

followed.

48a

Appendix D

The Respondent put in evidence to show that Mr. Hoy could

commit the company’s credit for purchases for supplies and

tools. However, the evidence shows that other employees such

as Joe Moody could do the same and therefore this assertion by

the Respondent does not have much weight.

There also was evidence that Mr. Hoy, on various

occasions, recommended to Mr. Cassis that individuals be

discharged. In this respect, his recommendations had mixed

results. For example, Hoy testified that he had unsuccessfully

recommended that Moody be discharged on several occasions

on account of his absenteeism. On the other hand, Hoy

successfully recommended the discharge of Mr. Branch.

Moreover, the evidence shows that Hoy kept asking for the

discharge of Carlos Reyes, (a porter), until George Cassis

acceded and discharged the man.

While not free from doubt, the evidence as a whole leads

me to conclude that Mr. Hoy was a supervisor within the

meaning of Section 2(11) of the Act.’

The Board and the Courts have interpreted Section 2(11)

ofthe Act in the disjunctive so that the possession of any one

of the authorities listed in this Section of the Act, places a person

5. Section 2(11) of the Act defines as supervisor as follows:

Any individual having authority, in the interest of the

employer, to hire, transfer, suspend, lay off, recall, promote,

discharge, assign, reward, or discipline other employees,

or responsibly to direct them, or to adjust their grievances,

or effectively to recommend such action, if in connection

with the foregoing the exercise of such authority is not of a

merely routine or clerical nature, but requires the use of

independent judgment.

49a

Appendix D

into the supervisory class. Ohio Power Company v. NLRB 176

F.2d 385 (6th Cir. 1949), cert. denied 338 U.S. 899. See also

NLRB v. Porta Systems Corp., 625 F.2d 399, 401 , and 2nd Cir.

1980); Allen Services Co., 314 NLRB 1060 (1994); and Queen

Mary, 317 NLRB 1303 (1995). Nevertheless, the Board has

made it plain that the party asserting that a person isa supervisor

has the burden on that issue. Adeo Electric, 307 NLRB 1113,

fn. 3 (1992).

While Mr. Hoy lacked many of the criteria for supervisory

Status, the evidence shows that he assigned and directed the

work of between 3 and 6 individuals; that he oversaw their

work and gave them direction; that at least some of this work,

involving repair and maintenance, was not routine; and that in

doing so, he exercised independent judgment. See Superior

Bakery, 294 NLRB 256 (1989); Rose Metal Products, 289

NLRB 1153 (1988); Jilini Steel Fabricators, Inc., 197 NLRB

303; and Custom Bronze & Aluminum Corp., 197 NLRB 397

(1972).

The evidence shows that Mr. Hoy was the highest paid of

the maintenance employees. Moreover, as Ms. Shea did not

have the knowledge to supervise repair and maintenance work,

and as George Cassis visited about 2 times a week, the only

person at the facility who could supervise the employees on a

day-to-day basis was Mr. Hoy.

The General Counsel cites a number of cases where

building superintendents were held to be non-supervisory

employees.

In J.R.R. Realty Co., 273 NLRB 1523, (1985), the

Administrative Law Judge, (ALJ), concluded that the person

eee er ree rhe a

50a

Appendix D

in dispute was not a supervisor, but was more in the nature of

“an experienced, senior employee who routinely oversees the

maintenance of the building, and is subject to regular and

constant higher supervisor.” The ALJ noted that higher

management visited the job site at least once a week to inspect

what was going on. He noted that there were only two other

employees, (the elevator operator and porter) who had jobs that

were repetitive in nature and which required no particular

further instructions or assignments. The Board noted that

although the individual in question testified that he “hired” the

porter, and that the authority to hire is often a dispositive factor

for supervisory status, that if the “hiring” individual merely

performed a ministerial act or hired at the direction of another,

this would not, by itself, prove supervisory status.

In Hagar Management Corp., 313 NLRB 428 (1993), the

Respondent was charged, inter alia, with being a successor and

not recognizing the Union that had been party to a contract

with the predecessor company. That contract covered two

people employed at the building; the superintendent and the

porter. The ALJ concluded that the superintendent was not a

supervisor, (ard therefore illegally discharged), noting his

testimony that he had none of the authority listed in Section

2(11) of the Act, that he merely passed along co:nplaints about

dirt to the porter, and that if tenants requested repairs, he would

have to obtain permission to make the repair from the

management office. The ALJ also found that since the purchase

of the building, the new company sent a supervisor to the

building several times a week.

In Elias Malluk Realty Corp., 265 NLRB 1225, (1982),

the Employer was found to have illegally withdrawn recognition

from one union, while entering into a contact with a rival union.

Sla

Appendix D

The ALJ found that the superintendents, (who had been

represented under the old contract with Local 32B-32J), did

not exercise supervisory authority. In this regard, he held that

their hire and discharge recommendations were independently

evaluated by higher management who did not uniformly or even

generally follow their recommendations. The ALJ concluded

that the superintendents were more like experienced, senior

employees who “routinely Supervise the maintenance of their

buildings, but subject to reguiar and constant higher supervision,

report and even recommend on personnel actions regarding the

assistants under them, but do not exercise independent judgment

on personne! matters and are not uniformly or even generally

followed on their personnel recommendations when made or

solicited.”

Notwithstanding the conclusion that the superintendents

in Elias Malluk Realty Corp., were not supervisors, the ALJ

nevertheless found that they were agents of the Respondent for

purposes of itsliability pursuant to Section 8(a)(1) and (2) of

the Act, (For the threat by one and the assistance conduct of

the other). He noted that the employees tended to regard the

superintendents as closely identified with management and that

the employees could reasonably believe that the superintendents

spoke and acted for management, particularly on union-related

matters.

Notwithstanding the cases cited above, (and the other cases

cited by the General Counsel in his Brief), I think that the facts

of the present case are distinguishable and put Hoy over the

line into supervisory status.

52a

Appendix D

(b) The Status of Charles Morrow.

The Respondent asserts that Mr. Morrow was retained as

an independent contractor. I reject this contention and find that

he was hired as an employee.

Prior to his association with the Respondent, Mr. Morrow

was a self-employed contractor. (He and Mr. Hoy knew each

other through the school that their children attended). In

response to a newspaper advertisement, he spoke to Kathy Shea

in January 1996 and was also interviewed by George Cassis.

At that time, he was engaged to do a single tiling job lasting

about 3 hours for which he was paid $75.00. Upon finishing

that one job, he was not called back by the Respondent until

March 1996.

-In mid-March, 1996, Morrow spoke with Hoy and was told

that the company needed someone. According to Morrow, he

had an interview with George Cassis, Emanuel Cassis and Carol

Cassis on March 20, 1996. Morrow states that he explained

what he could do and what his fees were but stated that he

wanted to be hired as an employee rather than as a contractor.

And in this regard, Morrow states that there was a discussion

about whether to hire him as an employee or an independent

contractor and that he was told that they wanted to think it

over. Finally, Morrow testified that he was asked if he would

sign a contract stating that he would not join a union. Nothing

was settled during this meeting and the employers

representatives said that they would contact Morrow.

According to Mr. Morrow, he received a phone call from

George Cassis on the evening of March 20 and was told that

the family had talked it over and that he, (Morrow), was hired

to begin on April 1 at $500 net pay per week.

53a

Appendix D

Morrow testified that on March 27, 1996 he filled out an

application form given to him by Ms. Shea and that he was told

to report to work immediately. He states that he also filled out

a tax withholding form, and that Shea, after looking at a chart,

figured out that he would have to have gross weekly earnings

of between $696 and $704 to reach a net weekly pay of $500.00.

At the same time, Morrow states that he spoke to Shea and

George Cassis who set up his work schedule as being from

Monday through Friday from 8 a.m. to 4 p.m. with the

commitment that he would also be available for emergencies.

He testifiec: that no-one said that this was going to be a

temporary jvb or that he was being retained as an independent

contractor. He also was told that Mr. Hoy was about to go on

vacation.

On March 28 Mr. Morrow was shown around the property

by Mr. Hoy who told him what his daily duties would be. Hoy

also took him over to Readers Hardware to introduce him there

so that he could make purchases on behalf of the Respondent.

In addition, Kathy Shea gave him a copy ofa list of backlogged

repairs that needed to be taken care of. Morrow began working

on this day and Mr. Hoy went on vacation on the following

day.

George Cassis testified that when he offered the position

to Mr. Morrow, he explicitly made the offer based on the

understanding that Morrow would be working 2s ai independent

contractor. Nevertheless, whatever words were used at the time

of the offer, (and I will credit Morrow’s version), the

determination of whether a person is an employee or

independent contractor is not dependent on the title used but

on the actual relationship between the individual and the

company. National Freight, Inc., 153 NLRB 1536 (1965).

54a

Appendix D

The test of whether an individual is an independent

contractor or an employee is the common law of agency

right-to-control test. NLRB v United Insurance Co., 390 U.S

254, 256, (1968). Pursuant to that test, an employer-employee

relationship exists when the employer reserves the right to

control not only the ends to be achieved, but also the means to

be used to achieve those ends. On the other hand, where the

control is reserved only as to the result, an independent contractor

relationship exists. Gold Medal Baking Co. Inc., 199 NLRB 895,

(1972). See also Standard Oil Co., 230 NLRB, 967, 968 (1987).

In the present case, the evidence indicates that Mr. Morrow

was hired to work for an indefinite duration, on a regularly

scheduled 8 hour day, and to perform work assigned to him

daily by the Respondent on its premises. He was to use the

tools and equipment of the Respondent and was, during his

scheduled hours, to work exclusively for the Respondent. That

the Respondent may have chosen to call him an independent

contractor is of no legal consequence, since it is clear to me

that the Respondent intended to retain the right to control not

only the ends to be achieved but also the means to be used to

achieve those ends.

In the second or third week of March 1996, Mr. Hoy met

with representatives of the Union and talked to them about the

possibility of having union renresentation. On or about March

22, 1996, he went to the Union’s office where he obtained union

authorization cards which he thereafter distributed to employees.

Mr. Hoy signed a union card on March 22, 1996 and he

was the person who solicited the others to sign the cards. Mr.

Cioffi, and Mr. Morrow signed union <*tds on March 25. Mr.

55a

Appendix D

Moody, although not signing a card himself, testified that he

authorized a Union representative to sign a card on his behalf,

after Hoy told him that he had forgotten, to sign the card that

Hoy had given him.

Contemporaneous with the above, Mr. Hoy and Mr. Cassis

got into a big argument over a matter unrelated to the Union

Mr. Cassis placed this argument as taking place on or abou:

March 21 whereas Mr. Hoy placed it on or about March 27. Ir

either event, the argument took place before the company was

aware of the Union and both sides agree that it was very heated.‘

According to Mr. Hoy, George Cassis accused him of ruining

his relationship with his family. At one point during the

argument, Cassis told Hoy to “get the fuck out,” and states that

he intended, by those words, to discharge Hoy. He acknowledges,

however, that he did not use the words, discharge or fire.

According to Mr. Hoy, after the argument, Ms. Shea to!d

him, later in the day, that she had talked to George’s mother,

(Carol Cassis), who told her that Hoy was not fired and that

although George was her son, she was still the boss.’ He also

testified that a day or two later, he met with Carol Cassis who

confirmed that his job was still secure. In this regard, Mrs.

Cassis testified that she went to the property on March 26, 1996

and that she had a conversation with Mr. Hoy on that date.

Both Mrs. Cassis and her other son, Emanuel, testified that

during the conversation, she asked if Hoy was coming back to

6. This argument did not come out of the blue as Hoy admitted

that before this time, his relationship with George Cassis was “awkward

at best.”

7. George Cassis testified that his mother had authority over him

in relation to the running of the business.

56a

Appendix D

work after his vacation and that when he said yes, she told him

that his job would still be there. It therefore is clear that despite

the blowup between George Cassis and Donald Hoy, the latter

was still employed by the Respondent when he left for his

vacation on April 1, 1996.

Union attorney, Mathew Parsanis, wrote a letter to the

company which was dated March 26, 1996 and signed by the

Union’s president, Robert L. Chartier. The letter was addressed

to Cassis Management, at 100 Brooklyn Avenue, Freeport, Long

Island, and, on Wednesday, March 27, 1996, was put in the

place where outgoing mail was picked up by the mailman. The

letter stated:

Please be advised that Local 32E of the Service

Employees International Union has been designated

by the employees of the bove captioned building

to act as their collective bargaining agent, pursuant

to the New York State Labor Relations Law.

In view of this designation, we are arranging an

appointment for Wednesday April 10, 1996 at 2:30

p.m. in our Bronx office and see Mr. Matthew

Persanis, Esq. to discuss the agreement covering

wages, hours, working conditions and benefits for

such employees.

In the event that this appointment cannot be kept,

please do not hesitate to contact this office to arrange

a convenient day and time.

Not receiving any response to this letter, the Union filed a

petition for an election in Case No. 2-RC-21674. This was

received in the Regional Office on April 3, 1996 at 2:36 p.m.

57a

Appendix D

Between March 22 and April 4, two new employees were

hired as porters. These were Charles Allien and Nicholas

Michel.

Assuming, as I do, that the mailman picked up the Union’s

letter on March 27, it would be extremely unlikely that the letter

would not have been received before April 4, 1996 when the

discharges occurred. Although George Cassis at first testified

that he was unsure if he got this letter before or after April 4,

and later testified that he received it on April 5, I don’t believe

him and I conclude that he received the letter on or before April

4. (I view as suspicious the fact that the Respondent, although

retaining the original of the letter, claims that it did not retain

the envelope which would have shown the date stamp. I also

view as suspicious the fact that the original had several things

written on it and then crossed out in such a manner that they

could not be read).

On the afternoon of April 4, Ms. Shea informed all the

employees, (except for Cioffi who had gone home early and

George’s son), that they were discharged. And in this regard,

Charles Morrow credibly testified that after Shea said that they

were all discharged, he got on the phone with George Cassis,

who said that he had gotten a letter from the Union, that he

didn’t want a union, and that they were all terminz ted.

On April 4, 1996, while Mr. Hoy was on vacation in F lorida,

he received a phone call from Ms. Shea. He credibly testified

that during the conversation, she told him that George Cassis

had called her from the Long Island Office and told her that

the men went to a I Inion and to fire everyone. (Although

denying that George Cassis said anything about a union, Ms.

Shea does concede that on April 4 she was told by him to fire

the entire crew).

58a

Appendix D

Louis Cioffi testified that he left early on April 4 because

he didn’t feel well and didn’t go to work on April 5 or 6. He

testified that when he called Donald Hoy on Sunday, April 7,

he was told that they were all fired. Cioffi took Hoy’s word for

it and did not report back to work. Instead, when the Union put

up a picket line, he participated in the picketing on one day.

Since it is clear from Shea’s testimony that she was directed to

discharge all of the workers, I conclude that Cioffi would have

been discharged on August 4 had he been present on that day

and that the message that he reczived from Hoy on April 7,

simply confirmed that state of affairs. I also note that the

Respondent did not communicate with Cioffi after April 7 in

an effort to have him return to work.

The Respondent argues that Morrow was never terminated

and that it is ready to use him as an independent contractor

when needed. It has, however, never offered him any more work

after April 4. Based on the credited testimony of Morrow, |

conclude that he was hired as an employee and that he was

discharged with the other employees on April 4.

The Respondent contends that it discharged Mr. Moody

because of his past poor attendance. A)though Mr. Moody may

have had a poor attendance recezu, the evidence shows that for

a long period of time the Respondent tolerated his absences,

apparently because George Cassis felt that Mr. Moody offered

good performance while at the job. I also note that in during

the 3 week period before April 4, Mr. Moody had no attendance

problems.

Based on the credited evidence, the only conclusion that |

can reach in this case is that having received the Union’s

demand for recognition, the Respondent, as it did in a prior

59a

Appendix D

case, responded by discharging the people employed at the

Mountain-view job site. (Retaining only Mr. Cassis’ son). This

conclusion is based on the timing of the discharges in relation

to the receipt of the recognition demand and on the credited

testimony of Mr. Hoy and Mr. Morrow. Although Mr. Alien

and Mr. Michel did not sign cards for the Union, (having been

only recently hired), this fact is not significant because the evi-

dence shows ‘hat George Cassis’ object was to remove the entire

crew because there was, in his mind, reason to believe that the

employees there might choose to be represented by a union.

Notwithstanding this conclusion, I must nevertheless

recommend that insofar as the Complaint alleges the unlawful

discharge of Mr. Hoy, this allegation should be dismissed

because of his supervisory status. Parker-Robb Chevrolet, Inc.

262 NLRB 402 (1982).

(d) The 8(a)(5) allegation

The evidence here shows that Mr. Hoy was a supervisor

and that he was the person who solicited and obtained the

authorization cards from Cioffi and Moody. As such, these cards

and his own, cannot form the basis for showing that the Union

represented a majority of the employees. Carl H. Neuman

d/b/a Sara Neuman Nursing Home, 270 NLRB 663 (1984).

Accordingly, as the General Counsel cannot show that a

majority of the employees voluntarily selected the Union as

their representative, the refusal to bargain allegation must be

dismissed.* In this regard, I view as distinguishable the cases

8. Even if I had concluded that Mr. Hoy was not a supervisor, |

would nevertheless find that the cards were tainted based on his

relationship between management and the employees. See for example

Elias Malluk Realty Corp., 265 NLRB 1225, (1982). At the time of the

(Cont'd)

60a

Appendix D

cited by the General Counsel in his Brief. For example, in

A.P.R.A. Fuei Oil, 309 NLRB 480, 498-99 (1992) the Board

held that the fact that a low level supervisor participated in the

union campaign, did not taint cards solicited by others. And in

United Artists Communications, 280 NLRB 1056 (1058), the

Board stated:

As the judge notes, supervisory participation in

the solicitation of authorization cards, normally

“taints” the cards, rendering them unreliable as

indicators of employee support for a union.

However, we agree with the judge that the normal

rule does not apply to the unusual circumstances in

this case. At the time, Tola solicited the cards, he

was scheduled for discharge, told the employees he

was being discharged, and asked the employees not

is tell management that he was soliciting cards. . . .

He did not make any promises of benefits or threats

of reprisals in regard to their employment in the

course of his solicitation of the authorization cards.

Indeed, three of the employees who signed

authorization cards for Local 5A had been strongly

advised as recently as 4 months earlier by

then-Theater Manager Mancuso against signing

union cards. . .

Thus, at the time the employees were solicited

by Tola to sign authorization cards for Local 5A in

(Cont'd)

demand for recognition, there were 5 employees plus Hoy. Of these,

Cioffi signed a card directly solicited by Hoy. Moody did not actually

sign a card, but asserts that he authorized a union agent to sign a card on

his behalf. Morrow signed a card at the Union's office in the presence

of Mr. Hoy. Alien and Miche! did not sign union cards.

senate iittala

6la

Appendix D

June 1982, they were well aware of the Respondent’s

strong opposition to unions, and had been threatened

with discharge if they joined a union. They were

also aware that Tila himself would soon be

discharged and wou therefore be incapable of

either rewarding them for Signing a card, or

punishing them for not doing so. Under these

circumstances, we agree with the judge that the

potentially objectionable effects of card solicitation

by a supervisor are not present in this case.

Conclusions of Law

1. By discharging Charles W. Morrow, Louis Cioffi, Joe

Elias Moody Jr. Charles Allien and Nicholas Michel, the

Respondent violated Section 8(a)(1) & (3) of the Act. .

2. By the conduct noted above, the Respondent has

engaged in unfair labor practices affecting commerce within

the meaning of Section 2(6) and (7) of the Act.

3. The Respondent has not violated the Act in any other

manner alleged in the Complaint.

Remedy

Having found that the Respondent has engaged in certain

unfair labor practices, I find that it must be ordered te cease

and desist and to take certain affirmative action designed to

effectuate the policies of the Act.

62a

Appendix D

The Respondent having discriminatorily discharged

employees, it must offer them reinstatement and make them

whole for any loss of earnings and other benefits, computed on

a quarterly basis from date of discharge to date of proper offer

of reinstatement, less any net interim earnings, as prescribed

in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as

computed in New Horizons for the Retarded, 283 NLRB 1173

(1987).

On these findings of fact and conclusions of law and on

the entire record, I issue the following recommended ”

ORDER

The Respondent, Cassis Management Corporation, its

officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Discharging or otherwise discriminating against

any employee for supporting Service Employees International

Union, Local 32E, AFL-CIO, or any other union,

(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

9. If no exceptions are filed as Provided by Sec. 102.46 of the

Board's Rules and Regulations, the findings, conclusions, and

recommended Order shall, as provided in Sec. 102.48 of the Rules, be

adopted by the Board and all objections to them shall be deemed waived

for all purposes.

—

63a

Appendix D

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Offer Charles W. Morrow, Louis Cioffi, Joe Elias

Moody Jr., Charles Allien and Nicholas Michel, within 14 days,

of this order, immediate and ful] reinstatement to their former

jobs or, of those jobs no longer exist, to substantially equivalent

positions, without prejudice to their seniority or any other rights

or privileges previously enjoyed, and make them whole for any

loss of earnings and other benefits suffered as a result of the

discrimination against them, in the manner set forth in the

remedy section of the decision.

(b) Within 14 days from the date of this Order, remove

from its files any reference to the unlawful discharges and notify

the employees in writing that this has been done and that the

discharges will not be used against them in any way.

available to the Board or its agents for examination and copying,

all payroll records, social security payment records, timecards,

personnel records and reports, ana all other records necessary

to analyze the amount of backpay due under the terms of this

Order.

(d) Within 14 days after service by the Region, post at

its facility in Dobbs Ferry, New York, copies of the attached

notice marked “Appendix,” Copies of the notice, on forms

10. If this Order is enforced by a Judgment of the United States

Court of Appeals, the words in the notice reading “POSTED BY ORDER

OF THE NATIONAL LABOR RELATIONS BOARD” shall read

“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES

COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD.”

64a

Appendix D

provided by the Regional Director for Region 2, after being

signed by the Respondent’s authorized representative, shall be

posted by the Respondent immediately upon receipt and

maintained for 60 consecutive days in conspicuous places

including all places where notices to employees are customarily

posted. Reasonable steps shall be taken by the Respondent to

ensure that the notices are not altered, defaced, or covered by

any other material. in the event that, during the pendency of

these proceedings, the Respondent has gone out of business or

closed the facility involved in these proceedings, the

Respondent shall duplicate and mail, at its own expense, a copy

of the notice to all current employees and former employees

employed by the Respondent at any time since April 11 1996.

(e) Within 21 days after service by the Region, file

with the Regional Director a sworn certification of a responsible

official on a form provided by the Region attesting to the steps

that the Respondent has taken to comply.

(f) IT IS FURTHER ORDERED that the complaint is

dismissed insofar as it alleges violations of the Act not

specifically found.

Dated, Washington, D.C. September 30, 1996

s/ Raymond P. Green

Raymond P. Green

Administrative Law Judge

65a

Appendix D

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated

the National Labor Relations Act and has ordered us to post

and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize

To form, join, or assist any union

To bargain collectively through representatives of

their own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected

concerted activities.

WE WILL NOT discharge or otherwise discriminate against

any of you for supporting Service Employees International

Union, Local 32E, AFL-CIO, or any other union.

WE WILL NOT in any like or related manner interfere with,

restrain, Or coerce you in the exercise of the rights guaranteed

you by Section 7 of the Act.

WE WILL, within 14 days from the date of the Board’s Order,

offer Charles W. Morrow, Louis Cioffi, Joe Elias Moody Jr.

Charles Allien and Nicholas Miche] immediate and full

66a

Appendix D

reinstatement to their former jobs or, if those jobs no longer

exist, to substantially equivalent positions, without prejudice

to their seniority or any other rights or privileges previously

enjoyed and WE WILL make them whole for any loss of

earnings and other benefits resulting from their discharge, less

any net interim earnings, plus interest.

WE WILL, within 14 days from the date of the Board’s Order,

remove from our files any reference to the unlawful discharges

of the aforesaid employees and WE WILL, within 3 days

thereafter, notify each of them in writing that this has been

done and that the discharges will not be used against them in

any way.

Cassis Management Corporation

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced, or

covered with any other material. Any questions concerning this

notice or compliance with its provisions may be directed to the

Board’s Office, 26 Federal Plaza, Room 3614, New York, New

York 10278-0104, Telephone 212-264-0346

eS” tt

67a

APPENDIX E— ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT DENYING

PETITION FOR REHEARING FILED JULY 21, 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CAROLYN CLARK CAMPBELL,

CLERK

As a stated Term of the United States Court of Appeals for

the Second Circuit held at the United States Courthouse, Foley

Square, in the City of New York, on the 21st day of July, one

thousand nine hundred and ninety-eight.

Docket No. 97-4125 (L) & 97-4355 (XAP)

Cassis Management Corporation,

Petitioner-Cross-Respondent,

¥.

National Labor Relations Board,

Respondent-Cross-Petitioner.

A petition for rehearing containing a suggestion that the action

be reheard in banc having been filed herein by the Petitioner-

Cross-Respondent Cassis Management Corporation,

Upon consideration by the panel that decided the

appeal, it is Orderea that said petition for rehearing

is DENIED.

68a

Appendix E

It is further noted that the suggestion for rehearing in banc has

transmitted to the judges for the court in regular active service

and to any other judge that heard the appeal and that no such

judge has requested that a vote be taken thereon.

For the Court

CAROLYN CLARK CAMPBELL, Clerk

By: s/ Beth J. Meador

Beth J. Meador

Administrative Attorney

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.